U.S. v. Armstrong

• Decision Date: 09 January 1984
• Docket Number: No. 81-7987,81-7987
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Timothy ARMSTRONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 681

722 F.2d 681

UNITED STATES of America, Plaintiff-Appellee, v. John Timothy ARMSTRONG, Defendant-Appellant.

No. 81-7987.

United States Court of Appeals, Eleventh Circuit.

Jan. 9, 1984.

Roger B. Colton, Foley & Colton, Douglas N. Duncan, West Palm Beach, Fla., for defendant-appellant.

Richard W. Hendrix, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and FAY, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

FAY, Circuit Judge:

Appellant, John Armstrong, was convicted after a jury trial in the district court for the Northern District of Georgia of knowingly and unlawfully possessing with intent to distribute two Schedule II control substances--cocaine and methaqualone--in violation of 21 U.S.C. Sec. 841(a)(1) (1980). In this appeal, Mr. Armstrong challenges the district court's denial of his motion to suppress the cocaine and methaqualone discovered during a search of his luggage which was allegedly conducted in violation of his fourth amendment rights. We find that appellant's fourth amendment rights were not violated since the initial encounter between the agent and the appellant at the Palm Beach International Airport was merely a contact, not within the purview of the fourth amendment. The seizure of the luggage at the Atlanta airport was lawful since it was supported by probable cause. We, therefore, hold that the trial court properly denied the motion to suppress and we affirm appellant's conviction.

I. FACTS

West Palm Beach Encounter

On January 9, 1981, Detective Kent Glover of the Palm Beach Sheriff's Department observed Michael Jennings enter the Palm Beach International Airport carrying two suitcases. He appeared very nervous as he approached the Delta ticket counter and soon was joined by appellant, John Armstrong. The appellant, who also appeared very nervous, produced a large amount of cash with which Mr. Jennings then purchased two tickets to Charleston, South Carolina, via Atlanta. They checked both items of luggage and started to walk toward the concourse area, no longer appearing nervous.

Detective Glover decided to stop the appellant and Mr. Jennings and ask them a few questions. Upon stopping them, Detective Glover identified himself as a Deputy Sheriff, and asked them if they would talk to him. Both indicated that they would and Detective Glover then requested their airplane tickets, and some form of picture identification. Both the tickets and the identifications were in their respective names.

Detective Glover requested consent to search the luggage, which had been checked previously with Delta Airlines, but both men refused to consent to the search. The appellant then asked Detective Glover if he could call his father, whom he identified as a police lieutenant. Detective Glover assented and told both men that they were not in custody and could go wherever they wished. After making his call to his father, the appellant again refused to consent to a search of the luggage and the interview was terminated. Both men left to board their flight. Detective Glover then telephoned Special Agent Paul J. Markonni of the Drug Enforcement Administration in Atlanta, to whom he recounted all the details of the encounter with Mr. Armstrong and Mr. Jennings, including the fact that they had refused to consent to a search of their luggage.

Atlanta Encounter

At approximately 8:20 p.m. that same day Special Agent Markonni and Special Agent Terry L. Mathewson met the arrival at the Atlanta Airport of Delta's flight from West Palm Beach and observed appellant and Mr. Jennings deplane. Both passengers, appearing very nervous, approached a Delta gate agent and asked for directions to the departure gate of their connecting flight to Charleston.

The agents then observed both appellant and Mr. Jennings enter a restroom. When they exited several minutes later, appellant went to a public telephone located in a "bank" of open telephones, while Mr. Jennings stood in the concourse outside the telephone area and looked all around. Mr. Jennings then went to the telephone next to appellant and appeared to be making a call. Agent Markonni approached the telephone "bank" area, stood at a telephone on the opposite side of both men and pretended to make a phone call. While there, he overheard appellant making the following statements:

They don't have enough for a search warrant.

They don't have enough for a search warrant, or they wouldn't have let us go.

He said they'd have a dog waiting in Charleston to smell our luggage.

I wasn't acting suspicious--they just picked us out.

We get into Charleston after 10:00 p.m. If I don't call by 11:00 p.m. or 11:30 p.m., get up to Charleston because I'll be in trouble.

Agent Markonni left the telephone area when appellant completed his call and rejoined Agent Mathewson in the concourse area. The DEA agents approached both men; identified themselves to them and asked them if they could speak to them for a few minutes. Both consented to talk to the agents and produced their tickets, baggage claim checks, and driver's licenses upon request. Both men, appearing very nervous, once more refused to permit a search of their luggage.

Appellant then indicated that he was waiting for a call from his lawyer and asked if he could go and phone his lawyer. Both agents advised them that they were not being detained and could do whatever they wished. After apparently conferring with appellant's attorney by telephone, both men returned and again refused to permit searches of their luggage. Agent Markonni informed them that they were both free to leave but that he would be retaining their luggage in Atlanta.

After obtaining the luggage from the baggage claim area, Agent Markonni requested a criminal record check of both men from the West Palm Beach Sheriff's Department. Detective Glover phoned Agent Markonni and informed him that appellant had been arrested previously by West Palm Beach police for two drug offenses and for a weapons offense. He further noted that appellant had been convicted of the weapons offense and placed on probation on the drug charges. Agent Markonni used all of the facts that he had compiled to obtain a search warrant from the magistrate for the two suitcases. Among the clothing in the luggage Agent Markonni discovered quantities of cocaine and methaqualone.

Appellant presents two arguments on appeal. First, he argues that the encounter with Detective Glover at the West Palm Beach airport was a seizure of his person which could be justified only by "reasonable suspicion" of criminal activity, which the officer lacked. Since the West Palm Beach encounter led the DEA agents to stop him in Atlanta, the cocaine and methaqualone obtained as a result of this encounter should be suppressed as fruits of an unlawful seizure. Second, he argues that the detention of his luggage at the Atlanta airport without probable cause also violated his fourth amendment rights.

II. INVESTIGATIVE STOP

In order to determine whether appellant's fourth amendment rights were violated at the initial confrontation in the West Palm Beach airport, we must determine if the encounter between Detective Glover and the appellant was the type of police-citizen encounter which would invoke the fourth amendment safeguards. In a recent en banc case, United States v. Berry, 670 F.2d 583 (5th Cir.1982) (Unit B), ¹ this court set definitive guidelines for applying the fourth amendment requirements to airport stops and searches of criminal suspects by law enforcement officials. The court concluded that there are three distinct tiers of police-citizen encounters, each triggering a different analysis of the balance which should be struck between the government's need to search and the invasion of privacy interests which such a search entails.

The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but rather the voluntary cooperation of the citizen is elicited through non-coercive questioning. This type of contact does not rise to the level of a seizure and therefore is outside the realm of fourth amendment protection. Id. at 591. The second category, the investigative stop, is limited to brief, non-intrusive detention during a frisk for weapons or preliminary questioning. This type of encounter is considered a "seizure" sufficient to invoke fourth amendment safeguards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. Id. The third type of police-citizen encounters, arrests, are characterized by highly intrusive or lengthy search or detention. The fourth amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime. Id. The essence of appellant's position is that his detention fell into the second category, a seizure, which requires reasonable suspicion.

The test for determining whether a seizure has occurred in an airport surveillance case was formulated by Justice Stewart in his concurrence in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and adopted by this court in Berry. ² Justice Stewart concluded that a person is "seized" within the meaning of the fourth amendment only if, in view of all the circumstances, a reasonable person would have concluded that he was not free to leave. Id. at 554, 100 S.Ct. at 1877. As long as a person remains at liberty to disregard a police officer's request for information, no constitutional interest is implicated.

Justice Stewart gave substance to this definition by citing examples of the circumstances that establish a seizure. Some of these examples would be "... the threatening presence of several officers, the display of a weapon by an officer, some...